April 7, 2012

"It typically featured a cottage or a house of such insistent coziness as to seem actually sinister, suggestive of a trap designed to attract Hansel and Gretel. Every window was lit, to lurid effect, as if the interior of the structure might be on fire."

You've got to give the guy credit for the sheer performance of painting in a manner that is simultaneously so loveable — by those who love it — and so hateable — by those who hate it. I've so often heard the phrase: You either love it or you hate it. I don't like clichés, but in Kinkade's case, the phrase is so apt. And Kinkade was cliché. So I just want to say (in tribute to the cliché that was Kinkade): You either love it or you hate it. What else can be said? Oh, how about a poll:

Up early for a haircut then out enjoying the beautiful sunshine! What a beautiful day the Lord hath made....

Sadly this is not a good Fri for the #Brewers....

Spent am signing bills in Milwaukee office then off for Good Friday and later for #Brewers Opening Day @ #MillerPark....

I drink several bottles of #cranberry juice each day. Glad our output is up 11% according to USDA...

This is charming... unless you hate the guy, as many do. In which case, I assume you're jeering or beating your head against the wall. He needs to explain these new laws persuasively. His opponents get so far out in front of him. He reminds me of George W. Bush, who seemed to believe that decent people would give him credit for doing the things he believed were right. Meanwhile, his antagonists controlled the narrative.

UPDATE: Rich Lowry announces that NR has fired Derbyshire. After some nice compliments — "he’s a deeply literate, funny, and incisive writer" — and some half-compliments — he's "maddening, outrageous, cranky, and provocative" — Lowry calls the new piece "nasty and indefensible." NR would never have published it, yet the name, National Review, is getting used to inflate its prominence. "Derb is effectively using our name to get more oxygen for views with which we’d never associate ourselves otherwise." Lowry calls the article "so outlandish it constitutes a kind of letter of resignation." Perhaps it is what Derbyshire wanted, and now he's got a powerful send-off.

MEANWHILE: In the comments section of last night's post "The Democrats' War on Women," a couple commenters engage in sexist wordplay about Lt. Gov. Rebecca Kleefisch (who, like Walker, faces recall). A commenter referred to "Walker and his 'minions'" and chickenlittle quipped "What about all the filly minions like Kleefisch? Do you want to filet them too?" and leslyn said "How do you filet a filly??" This portrayal of a woman as meat called to mind the infamous Hustler magazine cover (showing a woman's body fed through a meat grinder). I said:

"How do you filet a filly??"

Said, about Rebecca Kleefisch, by a female commenter who probably regards herself as a feminist. That image is one of sexual violence.

You compare an adult woman to a juvenile animal. You refer to slicing into her dead (animal) body, prepping her for cooking.

But the woman you revile is conservative, so maybe you didn't notice.

If you think you are a feminist, you are a fake one, really a lefty or a Democrat, and your partisan politics comes first.

Go stand over there will Bill Clinton.

Leslyn defended herself this way:

Oh for goodness sake, Althouse, "how do you filet a filly" was A PLAY ON WORDS on CHICKENLITTLE'S comment. Which you'd have recognized were you not humorless.

And get off the "feminist" rant already. To use a METAPHOR, you jump both sides of the fence.

My response:

I saw the joke. That is was a joke is irrelevant to my point.

Would you like me to Google "sexist jokes" for you?

Try making racist jokes out in public and see how far "it was humor" gets you.

Picture a filleted young horse. Picture a woman in a similar condition. Picture a particular named woman in that condition.

Now, is that funny?

Remember when Rush Limbaugh portrayed Sandra Fluke as a prostitute and said we should have sex tapes of her on the internet?

How funny was that?

Now... go on with your explanations about why you are really not a hypocrite.

Alternatively, concede. It might be the better option.

Being a feminist is hard. You have to be consistent. Take the challenge.

Quietly? The point is he signed a lot of bills on Thursday and some more on Friday, then announced them all at once on Friday. A Friday bill dump. Presumably, he's more interested in avoiding criticism than getting credit. Of course, he's getting plenty of criticism from Democrats anyway, both for the substance of the laws and for the low-key signings. But let's concentrate on the substance:

[One] bill requires a woman seeking an abortion to undergo a physical exam and consult with a doctor alone, away from her friends and family. The doctor must determine whether someone is pressuring the woman into the procedure....

But opponents argue webcam consultations aren't currently done in Wisconsin and Republicans simply want to make it more difficult to get an abortion....

That last sentence troubles me. How can you portray it as a burden — making it more difficult — if what is now forbidden was not even being done?

Do opponents also believe there is currently no problem of women getting pressured to have abortions? If that were happening, you wouldn't complain that abortions were more difficult to obtain. You'd want to slow things down at that point to protect the woman's right to choose. No mainstream political voices argue in favor or more abortions, only stronger abortion rights, freer access to abortion, if that is the woman's choice.

That last sentence needs rewriting, but it's hard to figure out how. It could say:

But opponents argue that women aren't coerced into abortions, and Republicans simply want to make it more difficult to get an abortion.

That would make sense as an argument, but I don't know if it's factually true. Opponents might feel squeamish about making an assertion like that, and it may conflict with other things they'd like to be able to say about the subordination of women.

Abortion politics. I'm not defending either side here. Everyone's gesturing at political constituencies. It's a nasty business in a delicate place, where there are many conflicting values, and a tremendous amount of dishonesty all around.

4. Focus on the leave-behinds not the take-aways: The best communicators are not only skilled at learning and gathering information while communicating, they are also adept at transferring ideas, aligning expectations, inspiring action, and spreading their vision. The key is to approach each interaction with a servant’s heart. When you truly focus on contributing more than receiving you will have accomplished the goal. Even though this may seem counter-intuitive, by intensely focusing on the other party’s wants, needs & desires, you’ll learn far more than you ever would by focusing on your agenda.

I'm annoyed that I can't get into that article — about the SG's argument in the Obamacare case — because I don't have a subscription to the Weekly Standard. Now, I'll never know whether that article contains a funnier mixed metaphor than that.

It was Western media coverage of Buddhist monks immolating themselves in protest of the South Vietnamese regime in 1963 that introduced the word "self-immolation" to a wide English-speaking audience and gave it a strong association with fire. The alternative name bonzo comes from the same era, because the Buddhist monks who immolated themselves were often referred to by the term bonze in English literature prior to the mid-20th century...

A capstone is "a stone that caps or crowns." I'm quoting the OED, where we can see the metaphorical use of the word goes back to 1685: "Here is the fair occasion... to put the cap-stone upon his other perfections" (tr. B. Gracián y Morales Courtiers Oracle 150). By the way, the Great Pyramid is missing its capstone. Ever notice? Makes you want to put an eye there:

Okay, now what about grasping at straws? What's the image there? I realize I've always pictured ants trying to get out of water by climbing onto some bit of straw. Focusing on that for the first time, I can see that grasping at straws would probably work for an ant. You're supposed to picture a human being trying to escape drowning and desperately grasping at anything, no matter how absurdly useless it is. Wiktionary tells me that the image goes back Thomas More, "Dialogue of Comfort Against Tribulation" (1534). More is talking about people who will not seek the "comfort" of God. Some of them are completely lethargic — "so drowned in sorrow that they fall into a careless deadly dullness." Others are so "testy" and "fuming" that you don't even want to talk to them. Then there are people who do want to be comforted. Some of them "seek for worldly comfort":

He who in tribulation turneth himself unto worldly vanities, to get help and comfort from them, fareth like a man who in peril of drowning catcheth whatsoever cometh next to hand, and that holdeth he fast, be it never so simple a stick. But then that helpeth him not, for he draweth that stick down under the water with him, and there they lie both drowned together. So surely, if we accustom ourselves to put our trust of comfort in the delight of these childish worldly things, God shall for that foul fault suffer our tribulation to grow so great that all the pleasures of this world shall never bear us up, but all our childish pleasure shall drown with us in the depth of tribulation.

You know, that eye on the pyramid, as seen on the Great Seal of the United States dollar bill is the "Eye of Providence":

On the seal, the Eye is surrounded by the words Annuit Cœptis, meaning "He approves (or has approved) [our] undertakings", and Novus Ordo Seclorum, meaning "New Order of the Ages". The Eye is positioned above an unfinished pyramid with thirteen steps, representing the original thirteen states and the future growth of the country. The lowest level of the pyramid shows the year 1776 in Roman numerals. The combined implication is that the Eye, or God, favors the prosperity of the United States.

Have we gone so deeply into the mixed metaphor that it's all coming together somehow?

Seventy-seven percent (77%) believe Jesus rose from the dead, while 16% reject the central Christian tenet of the Resurrection.

What's with the 1% who think Jesus was the son of God but did not rise from the dead?

It's a survey of 1,000 adults and the margin of error is is +/- 3 percentage points with a 95% level of confidence. Does your religion have less than a 3 percentage point margin of error and more than a 95% level of confidence? Should one defer to the choice of the overwhelming majority of your fellow citizens? Isn't it funny that, historically, that's what most human beings have done?

Predictably, Evangelical Christians, other Protestants and Catholics believe strongly in Christ’s divinity. Most non-Christian Americans believe Jesus did exist, but they are more evenly divided on whether he was the son of God and rose from the dead.

What?! Non-Christians are evenly divided on whether he was the son of God and rose from the dead?! Who are these people who believe Jesus was the son of God and rose from the dead but don't call themselves Christians? I'd like to ask them a few more questions. Are these people who think that you shouldn't call yourself a Christian if you are not doing a good enough job of following the teachings of Jesus Christ?

Most Americans of all racial backgrounds believe in the divinity of Christ, but black adults share this belief even more than white adults and adults of other races.

For all our talk about race, we don't talk that much about the role of religious beliefs. I'd love to see the percentages on that, but the linked article doesn't say, and though I have a Rasmussen subscription, I'd need a Platinum subscription to get to that level of detail.

Do you think you need to believe in Jesus to go to Heaven when you die? Rasmussen didn't ask that question. Maybe believing in Jesus is like having a Platinum subscription.

Says Obama. I agree. But... has the Democratic Party been acting like it believes that? Just before that he said: "There’s been a lot of talk about women and women’s issues lately, as there should be, but I think the conversation has been oversimplified."

So... will you call bullshit on the "War on Women"? Or will you alternate between fighting the war and saying there is no war?

The justice also had good words for the community in which he grew up. He compared the rural Georgia area to the setting of the movie The Help.

Despite all of the troubles, he wouldn't trade the neighborhood for anything, he said, adding that there was order and peace there.

"I was treated a lot better in the South than I was ever treated in the North," he said. In his high school, where he was the first, or one of the first, black students, "nobody ever said I was inferior."

Thomas described the Supreme Court as a "wonderful place" that "might be better than we deserve." He said the other justices are "good people" and his friends; he's never heard an unkind word among the nine justices when they discuss legal cases.

"... to the vulnerability I could hear in someone's voice or hanging plainly on his face," writes Catherine Lacey, who, to become an egg donor, had taken injections of Lupron (which "greatly reduces the sex hormones estradiol and testosterone") and Menopur ("made from the urine of post-menopausal women") and Gonal-F, ("a mega-follicle-stimulating-hormone that is bovine-derived").

If I made eye contact with anyone I immediately wanted to mourn and rejoice them. Subways were impossible. Strangers were emotional landmines. I was the menopausal, pregnant, and postpartum mother of the world.

I realize now that it sounds dramatic. It was dramatic, even to me: I'm not the weepiest woman who ever was. I'm known mostly for well-intentioned sarcasm, level-headedness, and an ability/susceptibility for detaching. So I found the over-emotional side-effect strangely enjoyable, like I was renting some more emotional woman's brain.

It's quite disturbing to think that these stereotypically female qualities are so chemical, that they could be injected, but then perhaps I wouldn't find it so disturbing if I were not myself female.

ADDED: A reader emails:

I used IVF to get pregnant. I took Lupron, Menopur, and Follistim (which is similar to Gonal-F). I didn't have any emotional symptoms at all. The only thing that happened was mild bloating and weight gain. Lacey's experience is totally foreign to me.

I know Wisconsin is so last Tuesday for a lot of you, but seriously, the effort to recall Gov. Scott Walker is a lot more significant than the next step in the Romney nomination process, so please don't stop thinking about Wisconsin. The recall primary is one month away and suddenly, Scott Walker is not the enemy, and there's a Democrat-on-Democrat fight between former Dane County Executive Kathleen Falk — who declared her candidacy back in January — and Milwaukee Mayor Tom Barrett — who just announced:

"You had your chance," [Madison attorney Linda Balisle] wrote Barrett Friday, just about 30 minutes after the Milwaukee mayor and 2010 gubernatorial candidate ended months of speculation by announcing he would run for governor. "We all gave you money. You lost. Now after Kathleen [Falk] has done all the work, a Chicago boss steps in and another Wisconsin woman is dissed."

Balisle, a longtime supporter who first met Falk when the two were students at UW Law School, says in a phone interview that she is disappointed that "after 35 years of [Falk's] boots-on-the-ground-work that has had a real effect on people's lives in Wisconsin, that [Barrett] would feel she's not good enough."

The "boss" she refers to is Chicago mayor and former Obama aide Rahm Emanuel, who recently attended a fundraiser for Barrett in Milwaukee.

Rahm Emanuel teams up with Barrett to push out the woman?! Remember the accusations about Rahm in relation to women working in the White House? (Ron Suskind's book "Confidence Men" said that "women occupied many of the West Wing’s senior positions, but felt outgunned and outmaneuvered by male colleagues such as former Chief of Staff Rahm Emanuel and [Larry] Summers.")

Balisle says Falk has been traveling the state since the time of the Capitol protests against Walker's collective bargaining bill, even interviewing those gathering petitions to recall the governor. "All of this before she decided to run," says Balisle. "She didn't want to go on a fool's errand. She made sure she could do the numbers before she put friends and family through this."

Balisle also posted a "say it isn't so" message on Terese Berceau's Facebook page when she heard the Democratic state lawmaker from Madison might be backing Barrett...

Berceau confirms she is backing Barrett.... Berceau says Barrett has the best chance of appealing to independents.

"Independent women are the gold standard," she says. "We know we need to reach them and know they're critical...."

30% think the Court doesn't put enough limits on the federal government. 40% thinks the Court gets it just right — which I presume is partly because people tend to trust the Court's authority on legal issues and partly because the Court is actually pretty good at providing just about the right degree of countermajoritarian balance.

That 40% — those who think the Court is getting it right — is about the same among Republicans, Democrats, and unaffiliated groups. But what about the rest of the Republicans, Democrats, and unaffiliated groups? Are they saying too much or not enough? Interestingly, the Republicans and unaffiliated voters are saying not enough. The Democrats are divided into too much and not enough. All of that shows, I think that attacking the Court as "activist" isn't a very useful political move.

Thirty-nine percent (39%) of all voters trust the Supreme Court more than the other two major branches of the federal government – the presidency and Congress. Thirty percent (30%) trust the president more, while only 12% put more faith in the Congress. Nineteen percent (19%) are not sure. Those figures reflect only modest changes since May 2009....

Most Republicans (70%) and voters not affiliated with either of the major parties (54%) have a favorable regard for the high court. Democrats by a 50% to 42% margin do not.

But then 60% of Democrats trust the president more than the other two branches of the government. Fifty-five percent (55%) of GOP voters express more confidence in the Supreme Court, a view shared by just 19% of those in the president’s party. Among unaffiliateds, 40% trust the court more, while 27% have more confidence in the president.

Interesting how the "unaffiliateds" seem more in sync with Republicans than with Democrats. This suggests it is not wise for Democrats to continue to denigrate the Court.

The staffer for DNC Chairwoman Debbie Wasserman Schultz who posted the controversial 'Jewbag' photo on her Facebook page in 2006 is no anonymous aide -- but the daughter of Mark and Nancy Gilbert, two major Florida donors who have raised more than $500,000 for the Obama campaign.

Danielle "Dani" Gilbert, according to party sources, was tapped by Wasserman Schultz to serve as a liaison to the Jewish community, even though party officials and people close to Obama told her that more senior Democrats were already handling those responsibilities.

Wasserman Schultz has thus far refused to fire or discipline Gilbert, whose gallery of candid photos and personal commentary has since been removed from her public Facebook page, according to Democrats.

Rep. Debbie Wasserman Schultz fired back Wednesday at Utah Sen. Orrin Hatch’s claim that Democrats would attack Mitt Romney’s Mormon faith in the fall election, saying the charge was “nonsense” and that the issue of religion was off-limits....

“That suggestion is utter nonsense. Let’s remember that President Obama has had so many things hurled at him – birth certificate questions, whether he is or is not a Christian,” Wasserman said. “For them to suggest that religion will be injected [into the election] by President Obama and the Democratic Party, I mean, I think they need to take a look inward at the accusations that their party and their supporters have hurled before they take that step.”

Well, I hope she's right about that, but of course, there will be many things the DNC won't control. It's hasn't been the RNC going after Obama over his religion, has it? And I seem to remember John McCain going out of his way to put Obama's religion far out of bounds, even declining to use the terribly juicy anti-American spoutings of Obama's pastor.

The Democratic Party’s newly appointed Jewish outreach liaison is pictured on Facebook in a series of provocative photos with her friends holding dollar bills and referring to themselves as “Jewbags” and the “Jew cash money team.”

I'm inferring that the "-bag" part refers to moneybags, rather than — to point to other meanings of "bag" —

1. an "unattractive or elderly woman," which, according to the Oxford English Dictionary, goes back to 1924 (P. Marks Plastic Age xviii. 202, "I don't... chase around with filthy bags or flunk my courses"); or...

2. "scrotum," which the OED locates back in the 1598 writing Frenche Chirurg: "The Scrotum, which we call the bagg wherin the testicles are contayned," which is the use of "-bag" in the present-day political slang term "teabagger," though I note that the 4th most-approved-of definition of "jewbag" at Urban Dictionary includes a second meaning "the action of tea-bagging a jew or someone of jewish descent."

It's AeroPress. $26. This is all you need or want. After daily use for maybe 5 years, the plunger got a bit less tight-sealing, and I ordered a new one. The coffee this morning, always good, is distinctly better. So it's definitely worth replacing your AeroPress when the fit slackens, but don't even contemplate wandering off looking for a better device.

An old article, remembered this morning while observing nature in our backyard:

I would not have taken this job if I did not believe, strongly and deeply, in the crows. And I do. I could go on and on about the crows’ generosity, taste in music, sense of family values; the 'buddy system' they invented to use against other birds, the work they do for the Shriners, and more. But they’re paying me a lot of bottles to say this—I can’t expect everybody to believe me. I do ask, if you’re unconvinced, that you take this simple test: Next time you’re looking out a window or driving in a car, notice if there’s a crow in sight. Then multiply that one crow by lots and lots of crows, and you’ll get an idea of what the next few years will bring. In the bird department, no matter what, the future is going to be almost all crows, almost all the time. That’s just a fact.

So why not just accept it, and learn to appreciate it, as so many of us have already? The crows are going to influence our culture and our world in beneficial ways we can’t even imagine today. Much of what they envision I am not yet at liberty to disclose, but I can tell you that it is magnificent. They are going to be birds like we’ve never seen. In their dark, jewel-like eyes burns an ambition to be more and better and to fly around all over the place constantly. They’re smart, they’re driven, and they’re comin’ at us. The crows : Let’s get ready to welcome tomorrow’s only bird.

And on the granite ledge around the garden, someone has written — in permanent black marker — "Capitalism needs to be destroyed/Solidarity Sing-Along Is Pro-Capitalism & Pro-Democratic Party/Russ Feingold is a Capitalist":

Therefore I tell you, do not be anxious about your life, what you will eat or what you will drink, nor about your body, what you will put on. Is not life more than food, and the body more than clothing? Look at the birds of the air: they neither sow nor reap nor gather into barns, and yet your heavenly Father feeds them. Are you not of more value than they? And which of you by being anxious can add a single hour to his span of life? And why are you anxious about clothing? Consider the lilies of the field, how they grow: they neither toil nor spin, yet I tell you, even Solomon in all his glory was not arrayed like one of these.

Current completely and utterly failed to run a professional news enterprise... Olberman deeply regrets his decision to put his trust in Hyatt and Gore.... Olbermann did not join Current to ruin his hard-won reputation and appear on a show that was an embarrassment.

Why can't Mary J. Blige do a comic performance in an ad for a fast-food restaurant? I'm sure they paid her a lot of money and that she was well represented and uncoerced. What really is the problem?

Here's the criticism that appeared on a website aimed at black women:

... I know you may be thinking everybody, across the world, loves chicken. It’s true, most people get down with the poultry; but as a black woman, singing passionately about chicken is not the move!...

Burger King got you gurl.... They hurriedly throw together clichéd, often stereotypical, advertising campaigns. And that’s where you came in, Mary. Having a black woman sing about chicken was no mistake. They’re trying to reach the “urban” (aka black) demographic. And God knows black folk, won’t buy anything unless there’s a song, and preferably a dance, attached to it.

With all the angst about racial stereotypes in the past few weeks, there might be some value to analyzing this relatively lightweight incident.

Says CNN's Gary Tuckman, closing a report that made it obvious that Zimmerman said "fucking cold" — on that cold, raining night — and not "fucking coons" after he saw Trayvon Martin, the young man he would later shoot to death.

Why would there still be controversy over what Zimmerman really said, and why would Tuckman end his report by keeping alive the sick hope that Zimmerman is a racist?

What there should still be controversy over is whether CNN feeds off racial discord — either for ratings or in pursuit of an insane political agenda.

... and is now annoyed that — after she tweeted about her encounter with the cinematic dreamboat — people are going on about his being such a hero, thus casting her in the retrograde role of damsel in distress.

[A]s a feminist, a writer, and a gentlewoman of fortune, I refuse to be cast in any sort of boring supporting female role, even though I have occasional trouble crossing the road, and even though I did swoon the teeniest tiniest bit when I realized it was him. I think that's lazy storytelling, and I'm sure Ryan Gosling would agree with me.

Why did the feminist cross the road? To swoon into the arms of a movie star, tweet about it, inspire intense envy, and then to hit those already slammed by envy a second time with the news that they are antifeminist for seeing her as a damsel in distress when she was really thinking deep thoughts about feminism.

The letter — predictably — presents the most ordinary and elementary propositions of constitutional law going back to Marbury v. Madison.

ADDED: Instapundit says " It’s all pretty unexceptional except for the final sentence." Ha ha. The last sentence is the claim that "The President’s remarks were fully consistent with the principles described herein."

See, I think this is a wonderful opportunity to compare political speech about the courts to the speech by politicians to the courts. If you get used to these different styles — as I am, having read this stuff for decades — you can translate back and forth. Speak political rhetoric and I can turn it into a version that is fit for judicial consumption. Show me the way you're talking to the judges and I can whip it into demagoguing-the-public form. And then there's the meta level, where Instapundit is, where you juxtapose them and leverage new critique.

Her rant includes many of the hackneyed phrases we're accustomed to seeing in anti-Court writing:

It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.

How do hacks writing NYT columns dress up?

All the fancy diplomas... cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

I elided "of the conservative majority" to highlight how political liberals bitching about conservative judges talk just like political conservatives bitching about liberal judges... and all their fancy diplomas cannot disguise it!

But I'm interested in the phrase that sounded new "cosseted behind white marble pillars." Can one be cosseted by pillars? What exactly is cosseting anyway? Did you picture something like this?

No. That's a corset. Do you let similar words affect your understanding of a word? (I once lost a spelling bee because I allowed the word "ostrich" to intrude upon my understanding of "ostracize.")

But cosset... it's something soft, not pillarlike, is it not?

cosset
1650s, "to fondle, caress, indulge," from a noun (1570s) meaning "lamb brought up as a pet" (applied to persons from 1590s), perhaps from O.E. cot-sæta "one who dwells in a cot."

When it comes to the Constitution and the Affordable Care Act, one must wonder who is the little lamb brought up as a pet.

1. A centipede was crawling up the counter. A man came over and kicked it, and it wasn't crawling anymore.

2. A very large man with his back to us stood up and leaned over to pick up a newspaper from the other side of his table. His t-shirt hiked up, revealing 12 to 14 inches of naked ass crack above the waistband of his baggy jeans. The display continued at least 30 seconds and was repeated again later.

After last week's superb performance attacking the constitutionality of the Affordable Care Act in the Supreme Court, former Solicitor General Paul Clement was in federal court — the 1st Circuit Court of Appeals — yesterday, defending the constitutionality of the Defense of Marriage Act.

There are 2 cases on appeal:

In the case brought by Martha Coakley, the Massachusetts attorney general, [Feder District] Judge Tauro found in 2010 that DOMA compels Massachusetts to discriminate against gay couples who are legally married under state law in order for the commonwealth to receive federal money for certain programs.

The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to federal benefits. In that case, Judge Tauro agreed in 2010 that the law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.

On the equal protection ground, Clement argued that Congress's legitimate interest was to have "a uniform definition" of marriage rather than to use state law, which varied from state to state (even though marriage laws have always varies from state to state, and Congress otherwise relies on state law to determine who counts as married for federal purposes).

Maura Healey, the assistant attorney general who argued on behalf of Ms. Coakley, told the panel that DOMA requires Massachusetts “to live with two distinct and unequal forms of marriage.” She added, “This is a burden that Congress has imposed on Massachusetts simply because it doesn’t like the fact that gay people are getting married.”

Stuart F. Delery, the Justice Department’s acting assistant attorney general for the civil division, also argued before the panel, saying that the court should hold DOMA to heightened scrutiny because it targets “a group with a long and deep history of discrimination.”

Isn't it wonderful that we have this opportunity to examine what we've been saying for the past week about the role of the judiciary and deference to democratic decisionmaking? I assume many people who want the ACA upheld want DOMA stricken down, and many who want to keep DOMA want ACA crushed. So have at it. And please be consistent.

As a law professor, it's easy for me to argue any of the 4 possibilities, so I'll let you start the conversation. First, a survey:

"In fact, I never buy anything at all. I stay at home and burn as few calories as possible so I won't have to eat more than a few acorns per day and on holidays, a squirrel or rabbit I catch in the yard and eat raw. I never turn on my furnace or air conditioner. No lights. No TV. For music, I hum quietly to myself. It cheers me up and, hopefully, it doesn't cause noise pollution. I stay away from programs such as Green Madison because I don't want to be lulled into believing I'm a good person when I know I'm not."

ADDED: Remember when Larry Tribe pushed Obama (his former student) to nominate Elena Kagan to the Supreme Court because "Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind"?

Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.

I wonder how well Kagan is doing scaling the convolutions of Kennedy's brain these days. As I said at the time: "if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played."

"Any big bright ideas on how I can earn some extra bank for my hoohah? Surely that was one of the courses you took when you were learning everything there is to know about bajingos. Because the thing is? My bajingo is here to stay. And it needs constant care and attention, just like a hermit crab, or a dwarf hamster. So please tell me you really do know everything there is to know about lady caves. This lady cave needs cash, big time. For medicine. So it doesn’t explode."

This looks painful. The more moderate Democrat — Milwaukee Mayor Tom Barrett — is getting nastily attacked proponents of the more left-wing candidate, Kathleen Falk. Here's the viral anti-Barrett ad (which hits him from the left):

That's going to hurt. Barrett looks far out of line with the spirit that drove the recall petitioning. And Walker's opponent will come straight from a battle with other Democrats. There's less than a month between the primary and the recall election. Based on that ad and predicting the attitudes that will develop in the next month leading up to the primary, I'm guessing Kathleen Falk will be Walker's opponent.

The largest state employee union says Barrett supported Walker’s bill to strip most collective bargaining rights from public employees. The group cites a video that includes a snippet of a radio interview in which Barrett suggests a way to break the stalemate.

Barrett did say it was important to separate the higher pension and health care payments from the collective bargaining changes. But he made it clear this was so the piece with broad support -- even from the unions -- could move forward.

In the part cut from the video, Barrett clearly states: "I would vote no on the changes in collective bargaining."

A quote that came up in conversation just now. I had to look it up to get it verbatim and was delighted to see it came from Samuel Johnson, whom I happened to quote yesterday. Nice to get a second use so soon for a newly created tag, referring to someone long dead. I hesitate to add new tags on individual names, and when it's someone buried in history, it seems like a particularly bad idea.

But I wish I could replicate the conversation that led Meade to paraphrase the quote. He said "Patriotism is the last bastion of the scoundrel." Which makes me wonder: What's the difference between a refuge and a bastion?

The dictionary man chose the better word for his aphorism. And Meade's deviation says something about his relationship with patriotism. I love the details in the etymology of those 2 words — fleeing versus a fortress. We'd puzzled some of that out before checking the wonderful Online Etymology Dictionary. Fascinating to look closely at a word and find the dead metaphor. It's easier to discover "fugitive" inside "refuge" than "bastille" inside "bastion," which shows the reward of paying even closer attention to things.

But let me try to summarize the conversation that led us to that quote.

1. I was saying how impressed I am that the American people genuinely care about the Constitution and that we believe our elected representatives must abide by it. I was thinking of this poll that showed that only 20% of American voters think the individual mandate is constitutional and only 37% think the Supreme Court should uphold it. That, despite the media effort to treat the challenge to the law as trivial or worse and to promote the idea that it's embarrassingly retrograde to think courts should enforce constitutional limits on Congress's enumerated powers.

2. After I used the word "sacred" to characterize the way Americans think of the Constitution, Meade expressed suspicion about regarding worldly things as religious, and I agreed, noting the way we Americans have come up with our own alternative to ancient ideas about monarchs embodying God's will.

3. We talked about how, when we were young, coming out of the culture of the 1960s, we thought of "patriotism" in a negative light. It was all about mindless deference to power (which, I note now, is the opposite of what constitutional limits on government represents).

I'm independent, moderate, and pragmatic, and I voted for you in 2008 because I thought I saw those qualities in you. I still see those qualities in you, but the you that has those qualities is one of two Obamas, and the other Obama — Radical Lefty Obama — is a person I will not vote for.

I think you alternate between these 2 personas, and I sense that you've done it for so long that it feels normal and comfortable to you, but I want to urge you to pack up Radical Lefty Obama and stow him away with the rest of your Harvard Law School memorabilia. I know you — the Moderate Obama — have impressed some very useful people over the years by parading about as Radical Lefty Obama.

Mr. Obama provided a powerful signal on Tuesday that he intends to make this election about the Republican Party’s failure to confront, what he called, “the defining issue of our time”: restoring a sense of economic security while giving everyone a fair shot, rather than enabling only a shrinking number of people to do exceedingly well. His remarks promise a tough-minded campaign that will call extremism and dishonesty by name.

Notice how, in expressing its love, the NYT portrayed Radical Lefty Obama as Moderate Obama. It's Moderate Obama that American voters find so appealing. You don't need all that left-wing economics and race-and-gender demagoguery. I think what people like about you — you, who are famously, sublimely likeable — is the normal person who seems to be in harmony with everyone. We — many of us — voted for you because you seemed to offer to bring us together, to end the rancor.

Be that Obama.

Note to Mitt Romney: If Obama doesn't want to be that Obama, you can be that guy.

What the Court actually accomplished in 1918 was to thwart democracy and consign large numbers of children to the textile mills for more than two decades. Health care is another context in which the fear of federal power creates a serious risk of ravaging the lives of large numbers of actual people. If the law is upheld, no one is going to be forced to buy broccoli. But if the law is struck down, large numbers of people will die of preventable or treatable diseases, or be bankrupted by medical expenses.

Shouldn't a President plan for contingencies? Obama was talking about the contingency of the Supreme Court possibly striking down some or all of the Affordable Care Act, and his asserted reason for not troubling with contingencies is purported confidence that the Supreme Court will not strike down the act.

I simply don't believe that they aren't planning for contingencies. I believe he doesn't want to talk about contingencies, and I suspect the main contingency is how to present the loss in the Supreme Court to the American people for the purposes of the reelection campaign.

By the way, that quote came in response to a question after Obama angrily scolded Republicans for their budget plan. In these planned remarks, Obama called the Republican's budget "a Trojan horse disguised as deficit reduction plans":

... it is really an attempt to impose a radical vision on our country. It is thinly veiled social Darwinism. It is antithetical to our entire history as a land of opportunity and upward mobility for everybody who's willing to work for it — a place where prosperity doesn’t trickle down from the top, but grows outward, from the heart of the middle class – and by gutting the very things we need to grow an economy that is built to last.

There's video at that second link. He sounds genuinely angry and frustrated. If you're familiar with the history of constitutional law, you will probably connect that reference to "social Darwinism" to the so-called Lochner Era, when the Supreme Court looked more deeply into the reasonableness of legislation. In the case that gives the era its name, Lochner v. New York, Justice Holmes dissented and said, enigmatically, "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," which is generally taken to refer to Social Darwinism.

See the resonance with the argument in favor of the Affordable Care Act? Obama has been asserting that if the Supreme Court strikes down the Act, it will be a throwback to the Lochner Era. I think we're seeing his big campaign theme: conservatives — on and off the Court — are the tool of the wealthy in their oppression of the less-than-wealthy.

So let me rethink the disbelief I expressed in the second paragraph of this post, because a different phrase in the post-title quote jumps out at me now: a whole bunch of time. He didn't say he wasn't planning for contingencies. He said he was not spending a whole bunch of time planning for contingencies.

Suddenly, I believe that. It doesn't take a whole bunch of time to slot that Supreme Court loss into the class warfare template. It can be done in the blink of an eye... the jerk of a knee.

April 3, 2012

Zimmerman: This guy looks like he’s up to no good. Or he’s on drugs or something. It’s raining and he’s just walking around, looking about.

Dispatcher: OK, and this guy — is he black, white or Hispanic?

Zimmerman: He looks black.

NBC now serves up a weak apology. I hope Zimmerman sues.

Flashback: Remember when Shirley Sherrod sued Andrew Breitbart for presenting the center section of a speech she gave, where she admitted discriminating against a white man, and left out the ending, where she talked about her realization that what matters isn't race, but class. I wonder if those who were outraged at Breitbart are outraged by the much more outrageous editing done by NBC.

ADDED: Some commenters question the way I referred to the Sherrod-Breitbart conflict. I will answer by referring to what I wrote at the time, back in July 2010.

I'd been ignoring the spam filter in the last week. Thanks to the reader who emailed about missing posts because there were lots of things that got snagged that needed to be released, which I just did.

So... if you've been thinking we were deleting your comments for some mysterious reason, you were probably in amongst the many things caught in the filter.

Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."...

The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick -- both Republican appointees --r emained silent, the source said.

Fascinatingly intense. Obviously, the DOJ will concede the power of judicial review, as historically recognized in Marbury. But the court is asking it to spell out exactly what the Administration thinks the limits are. Obama — like many pundits and politicians — throws around the ideas of judicial "restraint" and "activism," but the judges themselves tend to speak in terms of "saying what the law is" and putting the law — constitutional and statutory — in the proper hierarchy — with the Constitution on top — with no element of judicial will injected into the process.

It will be interesting to see if the Administration will endorse such a bland — but highly deferential — view of the judicial power or if it will explicate some more nuanced notion of when courts ought to let important/economic legislation prevail.

It's the Wisconsin primary today, and we're following the old family tradition of talking on the walk over and making the final decision at that point. I say it's an old family tradition because in 1976, I set out to walk over to the polls with my then-husband RLC, and we actually had to sit down at one point and talk it through. We were still for Jimmy Carter when we sat down, but by the time we got up to continue the walk to the poll, we were for Gerald Ford. We'd both voted for McGovern in 1972, and I would continue to vote for all Democratic presidential candidates — with the sole exception being 2004 — to this day (including voting for Carter in 1980, when he lost).

I like not deciding until I mark the ballot. I enjoy the free and flexible — flowing — mental state. As long as I have to pay attention to all the politics, every day.

So I say the quote that is the post title out loud, and the dialogue continues, with many lines, most of which I've forgotten, but one of which is "Time for you to do the traditional thing of voting for whoever I tell you to vote for."

Who will Althouse vote for?

Gingrich, because she's a contrarian.

Paul, because he's so cute and constitutional.

Romney, because he and his boyfriend Paul Ryan are dreamboats.

Santorum, because that's who Meade, the winger, will tell her to vote for.

"It's sort of back to the future, isn't it? And it is surprising in the 21st century we would be revisiting this issue. And Sandra Fluke should have been commended, not condemned, for her courage in expressing her own views and beliefs before members of Congress."

Ironically, what feels retro to me is saying to a woman: good for you for your courage in expressing your own views. It sounds as though she thinks women are timorous, mentally deficient creatures. It sounds like the way you'd compliment a child for attempting to do something "adult." Merely doing it at all is an achievement, quite aside from the quality and value of the performance.

Speaking of retro... this takes me back to the 1700s, when Samuel Johnson said: "Sir, a woman's preaching is like a dog's walking on his hind legs. It is not done well; but you are surprised to find it done at all."

The difference is, Johnson thought he was being quite funny. Snowe is deadly serious. Insipid!

On the "Today" show today. You have to watch a John Deere commercial to get to the short bit in the clip at the link, but it's quite funny, showing Palin "doing her homework." She's reading all the newspapers. You remember when Katie Couric asked her what newspapers she read — specifically — and she said she read "all of 'em, any of 'em that have been in front of me over all these years."

There is nothing novel about the law taking into account a criminal’s state of mind; one of the prerequisites for a conviction under common law is “mens rea” — a guilty mind, malice aforethought, criminal intent. The law also recognizes gradations of guilty purpose. A premeditated killing is more punishable than one committed in the heat of the moment, which is worse than a killing that results from negligence. New York law compounds the punishment if you kill someone to prevent him from being a witness.

The distinction [law-and-philosophy prof Heidi M.] Hurd makes — convincingly, I think — is that when you penalize intent you are punishing matters of choice. One can choose not to pull the trigger, not to throw the rock, not to steal the purse.

The NYT headline is "Noncitizens Sue Over U.S. Gay Marriage Ban," but both the citizen and the noncitizen are parties to the suits, and I think it's obvious that the claim of the citizen spouse is stronger. Why is one married American citizen treated differently from another married American citizen with respect to the ease with which her/his spouse can obtain legal residence in the United States?

Under [the Defense of Marriage Act], federal authorities do not recognize same-sex marriages, even from states that allow them. In recent years, as same-sex marriage became legal in several states, gay and lesbian couples have come forward to say they were facing a painful choice: either deportation for the immigrant or exile to life in a foreign country for the American.

“I’m a citizen of this country just like anybody else,” said Heather Morgan, 36, a plaintiff in the lawsuit together with her spouse, María del Mar Verdugo Yañez, 42, who is from Spain. After a 13-year friendship that evolved into a romance, the couple was married in August 2011 in New York City, where they live.

What a lovely couple they've chosen as the face of this lawsuit! I'm absolutely unsurprised that the NYT features the attractive female same-sex couple rather than males.

Please read the analysis by Merritt and Maguire. I just want to say one thing. Those who are pushing for the prosecution and conviction of Zimmerman, who seize with glee upon the voice biometrician's packaged conclusion, need to think about the use of this kind of expert opinion in all the other cases where prosecutors have more than one random recording of a person's voice. Your enthusiasm level should be the same. How reliable is this kind of expert opinion?

Obviously, if Zimmerman were at trial and Owen testified, giving his expert opinion, he would be cross-examined. His own statements — for example, claiming "reasonable scientific certainty" when he only had 2 recordings with different words and where one is screaming and one is not — would be used to impeach his credibility. Before you go too far, relying on the Expert! and Science!, go back to Merritt and Maguire and read carefully, imagining yourself as Zimmerman's defense lawyer and preparing your cross-examination.

In fact, you should imagine yourself as the prosecutor, imagining how the prosecution witness Owen would be cross-examined by Zimmerman's defense lawyer and deciding whether you would want to use Owen as a witness at all. And now — since I'm the lawprof giving assignments this morning — answer the following multiple choice question:

As Zimmerman's prosecutor, would you use Tom Owen as a witness?

Absolutely not. He would be destroyed on cross-examination, reflecting badly on everything else.

Said Senator Orrin Hatch, commenting on President Obama's preemptive attack on a Supreme Court opinion that would strike down the health care law. Obama, referring to the Court as "an unelected group of people," said "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Now, obviously, Obama's attack on the Court is vulnerable to the criticism that it's incoherent because there are other times when he honors the Court precisely because it does strike down laws passed by democratically elected legislatures. Indeed, he seems to use his democratically obtained power to appoint Supreme Court Justices who will, for example, strike down democratically enacted laws restricting abortion. He will lavish praise on the life-tenured, aloof-from-politics judges who produce decisions he likes.

Which brings me back to Hatch's quote: "It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"

I had to laugh.

Because I've been living in that fantasy world for almost 30 years.

It's called the legal academy.

Amongst the conlawprofs, it's an idea so standard as to be boringly banal: The courts should vigorously enforce individual rights, confidently stepping up to a countermajoritarian role, but when it comes to the "structural" parts of the Constitution — like federalism and separation of powers — the courts should defer to Congress.

April 2, 2012

Presumably, that's repeal if the Supreme Court doesn't strike down the law, and 54% expect the Supreme Court to strike down the law, and 50% would like to see that happen. 37% would like the law upheld, and only 26% think that's going to happen. Only 20% of voters think Congress has the constitutional authority to force everyone to buy health insurance.

And here, Scott Rasmussen why the law will die even if the Supreme Court upholds the law and Obama is reelected...

My favorite line from Ron Paul's speech — to a big crowd at the University of Wisconsin—Madison, on the Union Terrace, March 30, 2012. This edit of my video has that and a few of my other favorite moments, including Woodrow Wilson getting booed twice, a call for the repeal of the 16th Amendment, a joke about raw milk, and a "daydream" about politicians who "read the Constitution and would obey the Constitution.:

Van Jones laughs, riffing on the "come out" language in the question: "Do you think President Obama would lose some of the black vote if in fact he did come out in support of gay marriage."

Let's analyze why Van Jones thinks that's so funny. The foundation of the joke is the assumption that black people have negative feelings toward gay people. It works as funny because only because we're expected not to take this negativity seriously — either because black bigotry doesn't matter — or is fair retribution for America's racism — or because gay people don't matter... or all three. Throw in the breezy assumption that black people, looking at Obama, will not in any way engage with the actual political issues. Jones portrays black people as emotional, simple-minded, and all alike.

It's a big stew of racial stereotypes from the lawyer/civil rights activist who was chosen by President Obama as the first Special Advisor for Green Jobs, Enterprise and Innovation at the White House Council on Environmental Quality.

In the days and weeks to come, Trayvon Martin would be remembered as an easygoing young man who had simply gone to the store for some candy and a drink. And George Zimmerman would go into hiding, amid hundreds of death threats against him and his family. Both would become rhetorical devices in the heated, never-ending national disagreements about race and guns.

All that lay ahead. For now, the neighborhood watch coordinator stood under the bright sun that had replaced the previous night’s obscuring rain and told his side of a two-sided story about standing ground, and losing it.

Both would become rhetorical devices in the heated, never-ending national disagreements about race and guns....

Thanks to the NYT for stepping back and observing that rather than operating as a participant in the use and exploitation of these 2 unfortunate men.

Yeah, Sandler won in both the actor and actress categories, but I think the funniest thing there is that Al Pacino won Worst Supporting Actor when he was playing the role of himself. How can you screw up playing yourself? Ah! That seems like a deep and metaphysical question. It reminds me of the notion that made André Gregory cry, as described by Wallace Shawn in "My Dinner with André":

The reason I was meeting André was that an acquaintance of mine, George Grassfield, had called me and just insisted that I had to see him. Apparently, George had been walking his dog in an odd section of town the night before, and he'd suddenly come upon André leaning against a crumbling old building, and sobbing. André had explained to George that he'd just been watching the Ingmar Bergman movie Autumn Sonata about twenty-five blocks away, and he'd been seized by a fit of ungovernable crying when the character played by Ingrid Bergman had said, "I could always live in my art, but never in my life."

But let's check YouTube for what Pacino actually did in the movie "Jack and Jill." Here:

[T]he left has taken to mau-mauing the Justices by saying that if they overturn the [Obamacare] mandate they'll be acting like political partisans. The High Court's very "legitimacy" will be in question, as one editorial put it—a view repeated across the liberal commentariat....

Overturn any part of the law, the Justices are being told, and your reputations will be trashed. The invitations from Harvard and other precincts of the liberal establishment will dry up. And, by the way, you'll show you hate sick people—as if the Court's job is to determine health-care policy.

This is the left's echo of Newt Gingrich's threat earlier in the primary season to haul judges before Congress when it dislikes their rulings. Remember the political outrage over that one?

Well, there's a big difference between vigorous criticism of judges in the press and at the law schools — which is debate in the marketplace of ideas — and dragging them in person into the halls of Congress to berate them. But what exactly did Gingrich say? The WSJ provides no link or exact quote, but I Googled it for you.

These people seem to think that telling me that “I pay your wages” will suddenly part the cones and allow them to drive their executive saloon unimpeded through the scene of the accident. One of them actually called me a fascist, and threatened to have my job if I didn’t let them through. They have no comprehension that roads only get closed for a very good reason. A short diversion does not justify elitist abuse from every member of the would-be aristocracy that cannot bear the prospect of being five minutes late for their dinner party.

They have little, if any, concept of real life, and the tragedies that occur outside their electric gates and see the Police as no more than a necessary evil that should only interact with the lower classes or come running with bowed heads and doffed caps when someone pinches their staddle stones.

None of them knew what I had just gone through – I knew that. But regardless, I wished that some would give me a little more respect. We do what we do for a reason, and there is so much more to our job than most will ever know, or could ever imagine.